The Second Amendment Wild Card: The Persisting Relevance of the “Hybrid” Interpretation of the Right to Keep and Bear Arms

by Michael P. O’Shea

Those who teach and write about the Second Amendment (and say so as part of the answer when asked, “What do you do?”) know a distinctive feature of the subject is the strong interest it provokes from nonlawyers and other nonspecialists. Compared to scholars in other legal fields, the Second Amendment scholar is quite likely to field questions from open-minded inquirers in social settings. When this happens, I find that each of the two principal interpretations argued for in District of Columbia v. Heller—Justice Scalia’s majority opinion and Justice Stevens’s dissent—can provoke objections based on a perceived disconnect between the judges’ interpretations and the plain text of the amendment. In this introduction I’ll try to boil down these objections, which I’ll call “naïve textualist” for clarity. They offer a natural introduction to my topic.

In Heller and the later decision in McDonald v. Chicago, a majority of the United States Supreme Court concluded that the Second Amendment guarantees an “individual right to keep and bear arms for the purpose of self-defense.” The Heller court held that, as used in the Second Amendment, the “right of the people to keep and bear Arms” means a right “to possess and carry weapons in case of confrontation.” Further, the “central component” of the right to keep and bear arms is personal defense. At the same time, the right was and is also valued for other “traditionally lawful” purposes such as hunting, so these are probably also constitutionally protected purposes for owning guns.

When told of this interpretation, an interlocutor may point out that the text of the Second Amendment does not expressly speak of self-defense. Rather, to the extent that it designates a purpose to be served by the right to arms, it does it by stating that a “well regulated Militia” is “necessary to the security of a free State.” Why then did a majority of the Court conclude that self-defense was the right’s central purpose?

The answer must involve historical context and tradition. It’s often argued that any valid textualist approach to interpretation requires resort to context. Heller held that the Second Amendment codifies a “pre-existing” English right derived from the 1689 Declaration of Right, and that this right was understood to include personal defense along with civic purposes like deterring tyranny. This reading of the English right to arms is the subject of an ongoing dispute among historians.

Heller also drew heavily on early nineteenth century American sources, which clearly show that many courts and commentators viewed the American right to keep and bear arms as an individual right with a strong component of self-defense, including the carrying of personal weapons. As St. George Tucker, the first major commentator on the Bill of Rights, wrote in 1803, it would be improper for an American court to presume that a citizen was up to treasonous activity simply because he wore a gun in public, since the “right to bear arms is recognized and secured in the [C]onstitution itself,” and individual Americans regularly exercised it; as Tucker explained in his next sentence: “In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than an European fine gentleman without his sword by his side.” Later in this era, judicial decisions declared that the Second Amendment protected an individual “right to carry arms . . . in full open view,” enabling citizens to make “a manly and noble defence of themselves, if necessary.”

Context may persuade an interlocutor that the civic purpose stated in the Second Amendment’s first clause is not the right’s only purpose. Still, the text seems to highlight that purpose as very important. And, if an important goal of recognizing the right to arms is to ensure that the American people could function as an effective militia to ensure “the security of a free State,” then this might seem to imply a personal right to own ordinary military equipment—which today includes fully automatic rifles classified as machine guns by federal law. (“So, do I have a right to an M16?” is a typical response.)

Now one has to explain another interpretive move by the Court. According to Heller, machine guns probably are not Second Amendment “arms” at all. The Supreme Court majority thought it would be “startling” if machine guns were constitutionally protected and suggested that such weapons fall into a category of “dangerous and unusual” weapons that are not commonly kept by law-abiding citizens today and thus are constitutionally unprotected.

But if the Second Amendment no longer protects the right to own standard military equipment, then how is the right to keep and bear arms supposed to serve its civic purpose of ensuring the security of a free state? Heller replies:

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Heller has been sharply criticized on this score for a perceived departure from originalism:

Heller holds that government . . . may ban civilian use of military weapons, even if this means that the right to bear arms may no longer be effectively exercised for the republican purpose of resisting tyranny that the “prefatory clause” discusses. It is . . . striking that an originalist interpretation of the Second Amendment would . . . refuse to protect the arms a militia needs to defend against tyranny.

Erwin Chemerinsky has made a similar charge that Heller departs from textualism:

…Justice Scalia repeatedly has emphasized the importance of focusing on the text in interpreting legal documents. [But] Justice Scalia could find an individual right to have guns only by effectively ignoring the first half of the Second Amendment. Yet a cardinal rule of interpretation is that every clause of a provision must be given meaning.”).

The naïve textualist’s qualms about this side of Heller reflect a similar view. (Notice, though, that Chemerinsky’s criticism assumes that an interpreter who gives independent effect to the civic language in the Amendment’s preface must therefore reject “an individual right to have guns.” Much of this article is devoted to arguing that this inference is an error.)

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